Kelly v. Rosenstock

Miller, J., delivered the opinion of the Court. The appellees, Rosenstock and Stein, being owners in fee of certain lots situated in Baltimore County, fronting on Boundary or North Avenue, leased the same to one Caskey for ninety-nine years, renewable for ever. At the same time Caskey mortgaged his interest in them to the said Rosenstock and Stein, to secúre advances to the amount of $32,000, for the erection of houses on the lots. These two instruments, the lease and mortgage, were executed, delivered, and recorded on the same day, the 6th of August, 1872, and constituted one concurrent transaction.

After the houses had been built, the mortgagor made default, and his leasehold interest in the property was sold under the mortgage; and now the controversy arises, whether the mortgagees or certain mechanics’ liens are entitled to priority in the distribution of the proceeds of sale. The mechanics rest their claim to priority on two grounds: ³⁹² 1st. That the buildings were commenced before the mortgage was executed. 2nd. That the mortgage is void as against their claims, because the day of the month in the acknowledgment of it is left blank. 1st.

As to the first ground : We have said in Brooks vs. Lester, 36 Md., 70 , that what the law means by the “ commencement of the building,” is “ some work or labor on the ground, such as beginning to dig the foundation, or work of like description, which every one can readily see and recognize as the commencement of a building,” and in Jean vs. Wilson, 38 Md., 296 , we held, that such work must be done with the intention and purpose then formed to continue it to the completion of the building, and that work done on the ground without any design or purpose of constructing a building at that time, and which was intermitted, is not sufficient. Whether the work here relied on as having been done prior to the mortgage, gratifies these requirements, is purely a question of fact, to be determined by the evidence in the record. We have carefully examined the testimony on this subject, and especially that relied on by the claimants, and the result of that examination is this: . The surface of the ground in this locality is much below the grade of the avenue, and the bank of the latter slopes down upon these lots.

According to the testimony of the claimants’ witnesses, Caskey some time prior to the 13th of July, before he had acquired any interest in the property, and before any survey of them had been made, went with his foreman and a laborer to the lots, and drove stakes to indicate the line of the foundations, and at one corner dug or scraped away the dirt of the slope down to a level. What was thus done occupied but a short time, only part of a day. Caskey himself calls this work grading, but says it was done in order to prepare the plans, to get the depth by: that it was quite a deep place below the avenue, and we ³⁹³ could not tell the depth until we graded to a level, and that it was done before he notified Rosenstock and Stein of his intention to accept their offer of the land. The foreman says it was preparation for digging foundations; the object was merely to get a level; we laid off the foundations ; the digging was done to .govern the future digging of the cellar-diggers — as a starting point to level from; we only removed one corner to get the bottom of the cellar, to get the level; no survey had been made at that time; we sought the location of the property by guesswork, governed in some degree by surrounding property, and drove such stakes as were necessary to indicate the foundations, and that after this he made the drawings for the buildings.

Another witness describes it as measuring the width of the front, and at the same time levelling along the railroad track, or something of that kind. Now, assuming these witnesses to have correctly stated the time at which this work was done, they fix it at an earlier date than the 13th of July, and it is quite clear that nothing else was done on the ground after that until some days after the 6th of August, an interval of a month. Looking to the nature of the ground, and the character of the work thus described, it is more than probable that no trace of this slight digging or scraping of a sloping artificial bank of earth, made before the 13th of